CHARLESTON, WV (LOOTPRESS) — The West Virginia House of Delegates Judiciary Committee this week approved House Bill 2888, which would give wrongfully convicted people a pathway to get back into state court based on discredited forensic evidence. Sponsored by Delegate Joshua Higginbotham, R-Putnam and Vice Chairman of the House Education Committee, the legislation passed the committee unanimously March 9.
According to the National Registry of Exonerations, 45 percent of DNA-based wrongful convictions and nearly a quarter of all (DNA and non-DNA) wrongful convictions stem from false or misleading forensic evidence nationally. This can include forensic analysis or testimony that was false, inaccurate, or may have been generally accepted at the time but was later debunked by scientific advancements. In West Virginia, 90 percent of all exonerations have involved flawed or misleading forensics; those innocent men spent more than 100 combined years in prison for crimes they didn’t commit.
“With scientific advancements made every day, it’s critical that our justice system keep up,” said Delegate Higginbotham. “When bad or outdated science convicts an innocent person, that means the true perpetrator is still out in the community. HB 2888 is important for West Virginia because it will improve our courts, enhance public safety, help convict the guilty and protect the innocent with the power of science.”
Six states have enacted “discredited forensics” laws, including Texas and Wyoming. In those states, when a judge is considering whether a convicted person should be able to get back into state court based on “new evidence” of his or her innocence, the new evidence may include scientific advancements, new guidelines or expert repudiation. Additionally, several state high courts have already recognized that new evidence may include discredited forensics.
“West Virginia has long appreciated the power of forensic evidence in the courtroom, and this legislation continues that work by ensuring that science can also be used to exonerate,” said Program Director of the West Virginia Innocence Project Melissa Giggenbach. “We are so grateful to Delegate Higginbotham for his incredible work on behalf of the innocent.”
In some cases, scientific testimony that was generally accepted at the time of conviction has since been undermined by new scientific advancements in disciplines. In recent years, the National Academy of Science has detailed major flaws in bite marks, arson, hair comparisons and other types of forensic evidence used to convict people. While forensic science can help correctly identify perpetrators of crimes, if not properly overseen and updated according to the latest standards, it can also implicate an innocent person.
In 2006, Jason Lively was convicted of first-degree murder and first-degree arson in the death of Ebb K. Whitely in a March 2005 fire. Expert testimony during the trial indicated two intentionally set fires, and one (later discredited) witness also testified that Lively had been seen the morning of the fire in the vicinity of Whitley’s home. However, by 2020, the prosecutor who secured Lively’s original conviction had executed affidavits questioning the validity of Lively’s conviction due to new evidence. This included a report by a state-hired independent investigator who concluded that the fire was not intentionally set. Further, new expert examination proved no ignitable liquids or accelerants were present at the scene, more proof that the fire was not the result of arson. But because Lively didn’t have a statutory pathway to have this new evidence heard in state court, his exoneration relied on an agreement with the prosecutor.
“Without a law like HB 2888, innocent people have to contort their cases into constitutional claims like ineffective assistance of counsel, when what they really want a judge to consider is bad science,” said Laurie Roberts, a state policy advocate for the Innocence Project. “Thankfully, Jason was granted his freedom, but there’s no way to know how many more West Virginians were convicted based on flawed forensics. HB 2888 will help the judicial system run smoother while ensuring wrongfully convicted people have a mechanism to get back into court to prove their innocence.”
The bill is now on the House floor for consideration by the entire body.